IN RE: WBP CENTRAL ASSOCIATES (2008)

In a turnover proceeding pursuant to CPLR 5225(b), inter alia, to set aside allegedly fraudulent conveyances of assets, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Nastasi, J.), entered October 20, 2006, which denied the petition as premature, and dismissed the proceeding.

ORDERED that the order is reversed, on the law, with costs, the petition is reinstated, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings on the petition.

 Contrary to the determination of the Supreme Court, a claim to set aside an allegedly fraudulent conveyance of money, assets, or property may be asserted in a special proceeding pursuant to CPLR 5225(b), without first commencing a plenary action pursuant to article 10 of the Debtor and Creditor Law (see Matter of Federal Deposit Ins. Corp. v. Conte, 204 A.D.2d 845, 846, 612 N.Y.S.2d 261;  Gelbard v. Esses, 96 A.D.2d 573, 575, 465 N.Y.S.2d 264;  Siemens & Halske GmbH. v. Gres, 32 A.D.2d 624, 299 N.Y.S.2d 908;  Schoenberg v. Schoenberg, 113 Misc.2d 356, 359, 449 N.Y.S.2d 137, mod. 90 A.D.2d 827, 456 N.Y.S.2d 14;  Siegel, N.Y. Prac., § 510, at 868 [4th ed.] ).   We note that our decision in Taskiran v. Murphy, 8 A.D.3d 360, 361, 777 N.Y.S.2d 769 is factually distinguishable from the instant case.

The petitioner correctly contends that, pursuant to the “trust fund doctrine” (Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, 94 N.Y.2d 541, 549, 708 N.Y.S.2d 26, 729 N.E.2d 683), it may litigate, in a special proceeding pursuant to CPLR 5225(b), its claims that transfers were made without fair consideration, that the respondents Richard DeCola and Patricia Snowden, a/k/a Patricia DeCola, are the alter egos of the various corporate respondents, and that the corporate veil may be pierced (see Julien J. Studley, Inc. v. Lefrak, 48 N.Y.2d 954, 956, 425 N.Y.S.2d 65, 401 N.E.2d 187;  Matter of Goldman v. Chapman, 44 A.D.3d 938, 939-940, 844 N.Y.S.2d 126, lv. denied 10 N.Y.3d 702, 853 N.Y.S.2d 543, 883 N.E.2d 370;  First Capital Asset Mgt. v. N.A. Partners, 300 A.D.2d 112, 755 N.Y.S.2d 63;  Matter of P.A. Bldg. Co. v. Silverman, 298 A.D.2d 327, 328, 750 N.Y.S.2d 13;  O'Brien-Kreitzberg & Assoc. v. K.P., Inc., 218 A.D.2d 519, 520, 630 N.Y.S.2d 76;  Matter of Lack v. Kreiner, 91 A.D.2d 813, 458 N.Y.S.2d 40).

 However, the petitioner failed to establish its entitlement to a summary determination of the proceeding (see CPLR 409[b];  Matter of National Enters., Inc. v. Clermont Farm Corp., 46 A.D.3d 1180, 1183, 848 N.Y.S.2d 420).   Therefore, this Court need not reach the sufficiency of the respondents' papers (see Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463, 619 N.E.2d 400;  Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Westchester Med. Ctr. v. Allstate Ins. Co., 45 A.D.3d 579, 846 N.Y.S.2d 202).   The evidence presented with the petition, among other things, did not establish, as a matter of law, that assets belonging to the respondent Deco Construction Corp. (hereinafter Deco Construction) were diverted to the respondent Deco Supply Corp., or that fraudulent transfers were made to the respondents Deco Land Holding Corp., Deco Management Corp., or RMS Yorktown Development Corp. The evidence indicated that a significant amount of the assets allegedly conveyed in a fraudulent manner may not have been obtained from Deco Construction.

Moreover, the evidence presented with the petition did not establish, as a matter of law, that the sole shareholders of the respondent corporations exercised complete domination and control over those corporations so as to “commit a fraud or wrong against the [petitioner] which resulted in [the petitioner's] injury” (Matter of Morris v. New York State Dept. of Taxation & Fin., 82 N.Y.2d 135, 141, 603 N.Y.S.2d 807, 623 N.E.2d 1157;  Matter of Goldman v. Chapman, 44 A.D.3d at 939, 844 N.Y.S.2d 126).   Thus, the petitioner is not entitled to a summary determination of its claims that the respondents Richard DeCola and Patricia Snowden, a/k/a Patricia DeCola, were the alter egos of the respondent corporations, and that the corporate veils should be pierced.   Moreover, a claim to pierce the corporate veil “is fact-laden and thus not well suited for [summary determination]” (Matter of Alpha Bytes Computer Corp. v. Slaton, 307 A.D.2d 725, 726, 762 N.Y.S.2d 328;  see Giarguaro S.p.A. v. Amko Intl. Trading, 300 A.D.2d 349, 350, 751 N.Y.S.2d 772).   Thus, the matter must be remitted to the Supreme Court, Westchester County, for further proceedings on the petition.

The parties' remaining contentions either are not properly before this Court or are without merit.